GE15: Some constitutional issues

Consequential changes have to be made to several laws to implement the much-celebrated Constitution (Amendment) Act 2019.

THE 15th General Election is due in 2023 but the Prime Minister may request it much earlier due to the government’s unstable situation in Parliament. The Yang di-Pertuan Agong has an undoubted discretion under the Constitution’s Article 40(2)(b) and Article 55(2) to grant or refuse consent to the early dissolution of Parliament.

In addition, under the Emergency (Essential Powers) Ordinance 2021, sections 12 to 15, His Majesty has the power to fix the dates of federal and state elections.

Amendment of 2019: As a result of the passage through Parliament of the much-celebrated Constitution (Amendment) Act 2019 [Act A1603], the following significant changes were made to our electoral system:

> Article 119(1) was amended to lower the voting age from 21 years to 18;

> The amended Article 119(4) provides for an automatic registration of voters; and

> Article 47 and the Eighth Schedule were amended to reduce the qualifying age to 18 for candidates contesting a seat for the Dewan Rakyat and State Assemblies.

This Amendment Act was signed by His Majesty on Sept 4 and gazetted on Sept 10,2019. As a result of it, millions of young voters have high expectations that come the next general election, they will play an important part in democracy’s greatest showcase exercise. It is expected that some 7.8 million new voters will enter the electoral roll by 2023, raising by more than 50% the total number of voters, from 14.9 million in 2018 to 22.7 million in 2023.

However, a closer look at the legal situation indicates the existence of complex procedural issues before the monumental electoral changes take effect.

Special notification of Article 119 amendment: According to Section 1(2) of the Constitution (Amendment) Act 2019, the amendments to Article 119 (dealing with voting age and automatic registration) are to come “into operation on a date to be appointed by the Yang di-Pertuan Agong by notification in the Gazette”. This special requirement appears to be in addition to the gazetting that was accomplished on Sept 10.

Consequential amendments: During the parliamentary debate for the Constitution (Amendment) Bill 2019, it was noted that consequential changes have to be made to the following laws to implement the constitutional amendment of 2019:

> Election Offences Act 1954;

> Elections (Conduct of Elections) Regulations 1981;

> Elections (Registration of Electors) Regulations 2002; and

> All State Constitutions to enable the lowering of the age of eligibility to contest a seat in the State Assembly.

Follow-up action: The office of the Attorney General can advise us whether the notification by the Yang di-Pertuan Agong under section 1(2) of the Constitution (Amendment) Act 2019 has already been made or when it is expected to be undertaken.

The AGC or the Election Commission (EC) can also enlighten us whether amendments to the Election Offences Act 1954, Elections (Conduct of Elections) Regulations 1981, and Elections (Registration of Electors) Regulations 2002 have already been accomplished. The last two laws are subsidiary legislation and can be altered by the executive without the need to go to Parliament. But there is a real problem about updating the Election Offences Act 1954 and State Constitutions.

Parliament and State Assemblies: Due to the Emergency (Essential Powers) Ordinance 2021, Parliament is not in session, hence it cannot enact the necessary amendments to the Election Offences Act 1954. Likewise, State Assemblies are not in session and therefore cannot enact the necessary amendments to their Constitutions.

Election Commission: If the 15th GE were to be called soon, the EC will be on the horns of a dilemma. Must it continue to follow the outdated State Constitutions on the qualifying age for assemblymen? Must it comply with the unamended Election Offences Act 1954, the outdated Elections (Conduct of Elections) Regulations 1981, and the unamended Elections (Registration of Electors) Regulations 2002?

Or must the EC show fidelity to the supreme Constitution and superimpose the commands of the 2019 amendment on all relevant election laws even if they are not yet amended formally?

It is submitted that given the supremacy of the Federal Constitution, any provision in the Federal Constitution must prevail over all other laws (provided the constitutional provision is in operation).

Adverse consequences: If, as a result of administrative delay in the enactment or formulation of consequential changes, millions of 18-year-olds lose their expectation of a right to participate in the forthcoming GE, that will have massive political, legal and financial implications. There may be protests and people would search for someone to blame. Disenfranchised voters may sue for damages on the legal principle of the British case of Ashby v White. Court actions may be commenced to declare the whole electoral exercise a nullity.

If the elections are declared null and void, that may have massive cost implications, as the last GE cost RM600mil and the next may cost up to RM1bil.

Recommendations: Under Article 40(2(a) and the Emergency Ordinance 2021, the Yang di-Pertuan Agong may delay the dissolution of Parliament and the calling of a GE unless all the voting age issues are first resolved. His Majesty may employ his law-making power under Article 150(2B) of the Federal Constitution to promulgate an Emergency Ordinance to amend all State Constitutions plus the Election Offences Act 1954, Elections (Conduct of Elections) Regulations 1981, and Elections (Registration of Electors) Regulations 2002 to make them fall in line with the Constitution (Amendment) Act 2019.

Under Article 150(7), such an Ordinance will last during the emergency plus six months after the emergency is revoked.

Alternatively, the King may rely on his power under section 14(1)(b) of the Emergency (Essential Powers) Ordinance 2021 to summon the Parliament to enact the necessary amendments to the Election Offences Act 1954.

Likewise, the King can rely on his power under section 15(1)(b) of the Emergency Ordinance 2021, after consultation with the respective Ruler or Yang di-Pertua Negeri, to summon each State Assembly to enact the necessary amendment to the State Constitutions.

In sum, everything legally possible should be done to give life to the Constitution (Amendment) Act 2019. A general election should not be called unless all the necessary changes have been made to the laws to enfranchise our 18-year-olds and to give effect to their legitimate expectation.

The author is Holder of the Tunku Abdul Rahman Chair at UM, Tun Hussein Chair at ISIS (Malaysia) and Emeritus Professor at UiTM.

The views expressed here are the writer’s own.

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